Lack of same sex protection

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The (thankfully) former president of the Australian Human Rights Commission Gillian Triggs suggested recently that the same-sex marriage debate was taking place in a ‘post-truth’ climate and disputed claims there were insufficient protections for freedom of speech and religion.

On the first point, Triggs is completely right. But in making the second point Triggs is engaging in a bit of post-truth of her own. Aside from Triggs, Attorney-General George Brandis and other members of parliament have all now asserted that the Australian Constitution will adequately protect freedoms if the Commonwealth Marriage Act is amended.

To understand how shallow this assertion is, one only needs to ask: how exactly did the Constitution protect the Catholic Archbishop of Hobart, Julian Porteous, who was dragged before Tasmania’s equal opportunity agency in 2015 for circulating an argument against changing the meaning of marriage? Regardless of whether you intend to vote Yes or No in the plebiscite, we are entitled to know the consequences of what a change to the marriage laws would be. This requires the political class to be honest with voters. Instead, Brandis tells us that he won’t ‘be tricked’ into a ‘broader debate about religious freedom’.

This attitude is surprising. The Attorney-General was unhesitating in slamming One Nation Senator Pauline Hanson for offending ‘religious sensibilities’ by wearing an Islamic cultural garment in parliament – to the delight of Labor and the Greens – but just days later was blasé about legal impediments potentially being placed on Australians with religious and traditional beliefs.

The only one engaging in trickery here is Brandis. As the chief legal officer of the Crown, he surely understands that all Acts of Parliament, regulations and the common law form a single, interconnected body of law. So while the Attorney-General may believe the marriage debate should be held in isolation, there is an inevitable question that must be acknowledged as to how a change to the Marriage Act would affect other areas of law.

Traditionalist and religious Australians are not asking for special treatment: the right to hold and proclaim a particular world view in a community of like-minded believers is a foundational Western freedom. The government redefining marriage, in combination with existing anti-discrimination laws, threatens to undermine this fundamental freedom. In other words, at the core of the same-sex marriage debate is a question of whether we risk Australia’s liberal democracy becoming less liberal as the price for changing the Marriage Act.

The Commonwealth and the states have a variety of laws prohibiting discrimination because of the sexual orientation or marital status of a complainant, which would give people standing to take individuals or organisations to court for their refusal to conform and comply. In addition to laws prohibiting discrimination in the provision of services, sexual orientation ‘vilification’ is prohibited in the state laws of Tasmania, New South Wales, Queensland and the Australian Capital Territory.

The most notorious example so far of how these laws interact with traditional values was the complaint against Archbishop Porteous. The complaint was not terminated but was ultimately withdrawn by the complainant last year. Australians who believe in the traditional meaning of marriage are rightly concerned they, like Archbishop Porteous, will be compelled to conform to the new vision of marriage.

They are concerned that while commentary on heterosexual marriages will remain unrestricted, that same liberty will not apply to commentary on the institution of same-sex marriages.

Recent data would suggest these concerns are shared by many Australians. A Newspoll published in the Australian on 21 August found that 62 per cent of Australians want to see ‘guarantees in law for freedom of conscience, belief and religion’ if the government legislates for same-sex marriage.

The political class’s attempt to sidestep this crucial issue by alleging the constitution protects religious freedoms is egregious. What they are referring to is Section 116 of the Constitution, which provides that ‘The Commonwealth shall not make any law… for prohibiting the free exercise of any religion’. Read literally, Section 116 refers to laws that have a direct, explicit purpose of restricting religious practices, rather than laws that incidentally affect those practices. And obviously no one is proposing to explicitly undermine religious freedoms.

The High Court has consistently defined Section 116 narrowly, ever since a 1912 decision where the Court found that religious objections were no excuse to compulsory military service. In the 1997 case of Kruger v Commonwealth, the Court reaffirmed that Section 116 will only apply where a law has a purpose to prohibit religious freedom, with Justice Mary Gaudron stating that ‘it makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws’ that restrict that same freedom.

To understand why we are so fortunate Professor Triggs is no longer the AHRC president, she called this ‘one of the best protected rights under Australian law.’ Even if Section 116 could provide protection, it could apply only to Commonwealth laws. Most litigation for sexual orientation discrimination or vilification would be brought forward under state anti-discrimination laws. This is because those laws typically apply to a wider range of acts and have a lower threshold. The Constitution would provide no protection under such litigation.

This issue has been framed as a matter of equality. But this cannot be the case as long as the equal expression of religious and traditional beliefs goes unprotected. By ignoring these concerns, the pro-change movement’s call has made itself vulnerable to being described as an illiberal movement. Unless and until it addresses them, that is a characterisation that rightly will not change.

In the absence of broad protections, the government redefining marriage, in combination with these existing anti-discrimination laws, will likely undermine the right to hold, act in accordance with, and proclaim a particular opinion. Voters deserve better than to be told by the Attorney-General that these freedoms are ‘not what this is about’.